Citation Nr: 1624647 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 11-31 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1959 to February 1962. He died in 2010, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In August 2014, the Board denied the appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2015 Memorandum Decision, the Court vacated the August 2014 Board decision and remanded the matter to the Board for development consistent with the decision. FINDINGS OF FACT 1. The Veteran died in 2010. His death certificate lists the immediate cause of death as cryptogenic cirrhosis with myelodysplastic syndrome as an underlying cause of death. 2. When the Veteran died, service connection was in effect for a lumbar spine disability, rated as 60 percent disabling, and a right shoulder disability, rated as 20 percent disabling. The Veteran had also been awarded a total disability rating based on individual unemployability (TDIU). 3. The evidence is at least evenly balanced as to whether medications used to treat the Veteran's service-connected lumbar spine and right shoulder disabilities were a contributory cause of his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1101, 1110, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.5, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.5. A veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran's death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The Veteran's death certificate shows that the immediate cause of death was cryptogenic cirrhosis, with myelodysplastic syndrome as an underlying cause of death. When the Veteran died, service connection was in effect for degenerative disc disease of the lumbar spine (60 percent disabling), and residuals of a right shoulder dislocation (20 percent disabling). He had also been awarded a TDIU. In August 2014, the Board denied the appellant's claim. The Board determined that neither cryptogenic cirrhosis, nor myelodysplastic syndrome, manifested during active service, and were not related to military service or a disability of service origin. Additionally, relying on a July 2012 VA medical opinion, the Board determined that the evidence did not demonstrate that a service-connected disability was either the principal or a contributory cause of the Veteran's death. In September 2015, the Court vacated the Board's August 2014 decision due to its reliance on the July 2012 VA medical opinion, which the Court found inadequate. The medical opinion was deemed inadequate because the examiner did not opine as to the likelihood that the medications used to treat the Veteran's service-connected disabilities aggravated or exacerbated his cirrhosis or myelodysplastic syndrome such that they "'aided or lent assistance to the production of death.'" 38 C.F.R. § 3.312(c). To the extent that the examiner explained why she concluded that the medications did not cause cryptogenic cirrhosis and myelodysplastic syndrome, it was not clear to the Court that the examiner considered whether the medications combined with these disorders to cause death, or aided or lent assistance to the production of death. Moreover, the Court found it unclear from the examiner's opinion why the fact that the cause of the Veteran's cryptogenic cirrhosis was unknown, ruled out the possibility that his medications were a contributory cause of his death. For these reasons, the Court found the opinion inadequate and the Board's finding to the contrary was clearly erroneous. The Board was directed to obtain a new opinion. Following the Memorandum Decision, the appellant submitted a March 2016 private medical opinion of Dr. G. Dr. G. stated that he had reviewed the claims file, and had spent seven hours obtaining medical history and information from the appellant, as well as the Veteran and appellant's daughter who is a physician. Dr. G. submitted an extensive, 33 page report outlining the Veteran's medical history (Section A), his personal history including diagnoses (Section B), his medication history (Section C), an application of medical literature to the facts of the case (Section D), and conclusions. He also included a February 2016 letter from the Veteran's daughter in which she summarized his history of medications. Dr. G. opined that "it was more likely than not that his death from cirrhosis, which had led to the development of the MDS [myelodysplastic syndrome], was contributed to significantly by the medications acetaminophen and diclofenac, which the veteran took to treat the pain from his service connected low back and right shoulder." In an extensive explanation, Dr. G. concluded that the Veteran had consumed high doses of acetaminophen (Tylenol) for 40 years to relieve pain, and that diclofenac had also been consumed for an extensive period. Medical literature, including from the Physician's Desk Reference, the Monthly Prescribing Reference, and medical textbooks and journals, showed that these medications are hepatotoxic (damaging or destructive to liver cells), and have also each been identified as contributing factor in either the development or the acceleration of MDS. As to his Tylenol use specifically, over the years the Veteran consumed thousands of doses of Tylenol ES, each containing 500 mg of acetaminophen, taking two at a time on multiple occasions during the day. The Veteran had been advised to take Tylenol on as-needed basis, but his doctors, and presumably his daughter, were unaware of the amount he had been taking daily. Dr. G. explained that the Veteran did not necessarily exceed the recommended maximum dose of Tylenol, but that in the early 1990s much higher amounts of Tylenol were believed to be safe than today, as described in the package inserts at the time. His heavy use of Tylenol in combination with diclofenac over the course of many years was a contributing factor in his death. Dr. G. stated, In my opinion, this was not a case of cryptogenic or idiopathic cirrhosis, in which no cause can be found, but that more likely than not, the cirrhosis was caused by the veteran's consumption over many years of the hepatotoxic drugs acetaminophen and diclofenac. With seemingly all other causes having been excluded by multiple VA physicians, including Gilbert's disease, Gauchet's disease, the various types of hepatitis, a genetic predisposition because of his Mediterranean (Italian) descent, some unknown type of toxic exposure as a result of being a supervisor at the Colt firearms manufacturing facility, the remaining prominent cause is the long term administration of hepatotoxic drugs. The Board's own review of the claims file indeed confirms that the Veteran was prescribed diclofenac over many years, and had been advised to take Tylenol on an as-needed basis, for pain caused by his service-connected back and right shoulder disabilities. See, e.g., June 1994 VA examination report; VA treatment records from April 1999 & August 2002; VA treatment records from November 2008 & December 2009 (Virtual VA); November 2004 private medical report of Dr. B.; February 2012 statement of the Veteran's physician-daughter. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that service connection for the cause of the Veteran's death is warranted. The July 2012 VA examination report is of little probative value, for the reasons explained by the Court in its September 2015 Memorandum Decision. The Veteran's physician-daughter has submitted several statements in the course of the appeal, but none amount to a clear opinion on the crux of the matter; rather, they essentially contain recitations of the Veteran's medical history. The only remaining opinion is that of Dr. G., which is adequate for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Dr. G. based his conclusions on an examination of the claims file, including the Veteran's personal medical history and diagnostic reports, as well as medical literature. He provided a rationale for the conclusions reached. At a very minimum, the evidence is in equipoise in showing that the medications used to treat the Veteran's service-connected lumbar spine and right shoulder disabilities contributed substantially and materially to his cause of death, combined to cause death, and aided or lent assistance to the production of death. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In resolving any doubt in the appellant's favor, service connection is warranted. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. Given the favorable disposition of the claim for service connection the cause of the Veteran's death, all notification and development actions needed to fairly adjudicate the claim have been accomplished. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs